 Entry to the Wisconsin Supreme Court in the Capitol in Madison. Photograph by Margo Kirchner. By Alexandria Staubach
The Wisconsin Supreme Court opens its session with oral arguments next week, including a case concerning the constitutionality of Wisconsin’s reverse waiver statute. “Reverse waiver” is used to describe a case that begins in adult court but is later transferred to juvenile court. Under the pertinent statute, adult circuit courts exercise original jurisdiction over various homicide charges for any child alleged to have committed the crime “on or after the juvenile’s 10th birthday.” That jurisdiction can only be transferred to juvenile court through the reverse waiver process. Noah Mann-Tate was charged with intentional first-degree homicide, a Class A felony (the most serious), for shooting his mother in November 2022. He was 10 years old at the time. Charges were brought in early 2023 after Mann-Tate made conflicting statements to police about what happened, including an admission that he was angry with his mother, stole and hid the key to her gun safe the night before, accessed a gun, and shot her in the morning. Milwaukee County Circuit Court Judge Jane Carroll denied Mann-Tate’s motion for reverse waiver. She said that “the most compelling reason to keep Mann-Tate in the juvenile system was his age” and that a 10-year-old did not belong in the adult court system. However, she found she was required to consider only the factors listed in the statute, which do not include age. The reverse waiver statute defines three factors that must be considered by the adult court when considering transfer: whether the juvenile can receive adequate treatment in the adult criminal justice system, the seriousness of the offense, and the effect on general deterrence. The burden is on the child to establish that statutory requirements for reverse waiver are met. In Mann-Tate’s appeal from Carroll’s decision, Wisconsin Court of Appeals District 1 found Wisconsin’s reverse-waiver law unconstitutional. Judge Sara Geenen wrote the decision for the appeals court panel. Geenen wrote that a decade after Wisconsin enacted its reverse waiver statute, the U.S. Supreme Court “fundamentally altered the way in which juveniles are treated in the criminal justice system.” Based on the U.S. Constitution’s Eighth Amendment prohibition against cruel and unusual punishment, the high court distinguished juveniles for the purposes of sentencing. The Court of Appeals found that the distinction is not limited to Eighth Amendment issues. It said that additional factors discussed by the U.S. Supreme Court should be considered during reverse waiver proceedings. Those factors include the child’s chronological age related to maturity and impulsiveness, the child’s ability to appreciate risk and consequences, family and home life and the circumstances of the crime, impact on family, peer pressure, the effect of age on the child’s ability to navigate the criminal justice process, and the possibility of rehabilitation. Mann-Tate argued, and the Court of Appeals agreed, that the statutory factors set out in Wisconsin law are “unconstitutionally incomplete” because they fail to include the “unique attributes of youth” as identified and required by the U.S. Supreme Court. Geenen noted that the circuit court could not find whether adult court treatment services were sufficient because although Mann-Tate had “below-normal-intelligence,” there was no medical diagnosis in the record, despite the child telling officers that he has five imaginary people who talk to him. Because Mann-Tate’s mental health needs were unknown, he could not prove that the adult system could not provide adequate treatment. The state asked the Wisconsin Supreme Court to review the case, leading to next week’s argument date. Of note, Bryan Stevenson, the acclaimed attorney and executive director of Equal Justice Initiative (a human rights organization in Montgomery, Alabama), has entered an appearance on Mann-Tate’s behalf for purposes of the Supreme Court proceedings.
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Note: We are crunching Supreme Court of Wisconsin decisions down to size. The rule for this is that no justice gets more than 10 paragraphs as written in the actual decision. The “upshot” and “background” sections do not count as part of the 10 paragraphs because of their summary and necessary nature. We’ve also removed citations from the opinion for ease of. Italics indicate WJI insertions. Emphasis in the original is italicized and underlined. Case: Wisconsin State Legislature v. Kaul Majority: Justice Rebecca Frank Dallet (11 pages), joined by Chief Justice Jill J. Karofsky and Justices Janet C. Protasiewicz and Susan M. Crawford Concurrence in part and dissent in part: Justice Brian K. Hagedorn (2 pages) Dissent: Justice Rebecca Grassl Bradley (29 pages), joined by Justice Annette Kingsland Ziegler except as to the first four paragraphs In December 2024, WJI reported on the District 2 Court of Appeals decision in this case (in favor of the Legislature) here.  Dallet Upshot We conclude that the attorney general complies with the pertinent settlement-funds statute when, in accordance with the straightforward language of the statute, he deposits settlement funds into the general fund. That is true even if the attorney general also credits those deposited settlement funds to one or more program appropriations contained within the general fund. Accordingly, we reverse in relevant part the court of appeals’ decision. We further determine that the second issue regarding the program appropriation under a second statute should be dismissed as improvidently granted. In other words, the attorney general, not the Legislature, controls millions of dollars recovered through litigation settlements. Even though settlement revenues are deposited in the general fund, the settlement-funds statute at issue does not preclude crediting the money for the Department of Justice rather than for general purposes controlled by the Legislature. Background The attorney general represents the state in legal matters, including by bringing civil actions to enforce state statutes or otherwise to represent the state’s interests. Sometimes those civil actions end in settlements through which the attorney general recovers money on behalf of the state. Such settlements may include money earmarked for specific purposes like restitution or attorneys’ fees. But they can also include “uncommitted” funds, that is, money that is not designated for a particular purpose by the settlement and is instead left to the attorney general’s discretion. . . . *** . . . . When a state agency receives money on behalf of the state, it must place that money into a “fund” within the state treasury. The budget statutes refer to this act as “depositing.” There are two types of “fund,” namely, the “general fund” and “segregated funds.” The “general fund” consists of “[a]ll moneys in the state treasury not specifically designated in any statute as belonging to any other funds.” The rest of the treasury is made up of “segregated funds,” that is, “revenues which, by law, are deposited into funds other than the general fund and are available for the purposes for which such funds are created.” This case concerns only revenues deposited into the general fund. When money is deposited into the general fund, it must be directed to a specific part of the general fund. The budget statutes refer to this act as “crediting.” . . . “Deposit” refers simply to placing money into the general fund or a segregated fund of the state treasury. “Credit” refers to directing money deposited into the general fund to a specific part of the general fund. The default crediting rule is that money deposited into the general fund “shall be credited to the general purpose revenues of the general fund unless otherwise specifically provided by law.” Money credited to the general purpose revenues of the general fund is “available for appropriation by the legislature.” When the legislature has “otherwise specifically provided by law,” however, deposits are credited elsewhere. *** For many years, attorneys general from both political parties have negotiated settlements through which the state recovered significant sums of “uncommitted” funds—in other words, money that was not specifically designated in the settlement for restitution, attorneys’ fees, or another specific purpose. Those attorneys general, in turn, deposited the uncommitted funds into the general fund and credited them to a program appropriation, specifically the Department of Justice’s . . . program appropriation as “proceeds from services.” Once there, the funds were available for the attorney general to spend on the Department’s programs and activities pursuant to the program appropriation. *** . . . In late 2018, the legislature adopted the current version of the settlement-funds statute, which provides in its entirety that “[t]he attorney general shall deposit all settlement funds into the general fund.” . . . After Attorney General Kaul took office in 2019, the legislature argued that the settlement-funds statute required him to deposit all uncommitted settlement funds into the general fund and credit them to the general purpose revenues of the general fund. After both sides exchanged numerous letters that failed to resolve their dispute, the legislature and an individual plaintiff . . . filed this case in Polk County Circuit Court. The complaint sought a declaration that the settlement-funds statute “requires the Attorney General to ‘deposit all settlement funds into the general fund,’ . . . and does not allow for the depositing of settlement funds into the appropriation account . . . . . . . . The circuit court granted partial summary judgment in the attorney general’s favor, concluding that the settlement-funds statute requires only that settlement funds be deposited into the general fund, and does not require those funds to be credited to the general purpose revenues of the general fund. . . . Accordingly, the circuit court declared that the settlement-funds statute requires only that all settlement funds be deposited into the general fund. Because the attorney general was already doing that, the circuit court concluded he was complying with that statute. Regarding the Legislature’s argument that under a second statute the attorney general could not credit uncommitted funds to a program appropriation as “proceeds from services,” the court found that the case as pled did not encompass the issue. The legislature appealed, and the court of appeals reversed the circuit court’s decision regarding the settlement-funds statute. . . . The court of appeals explained that the settlement-funds statute, together with two other statutes, required that “all settlement funds must be deposited into the general purpose revenue fund.” . . . The court of appeals’ broad holding that the settlement-funds statute required all uncommitted settlement funds to be “deposit[ed]” into the general purpose revenues of the general fund meant that it did not have to reach the legislature’s narrower, alternative contention about the scope and interpretation of the second statute. . . . Nevertheless, when we granted review of the court of appeals’ decision regarding the settlement-funds statute, we asked the parties to address whether “the services rendered by Department of Justice personnel in litigating a civil action on behalf of the State of Wisconsin or an executive branch agency constitute ‘proceeds from services’ under that second statute. The legislature’s primary contention is that the attorney general is violating the settlement-funds statute when he deposits uncommitted settlement funds in the general fund and credits those funds anywhere except the general purpose revenues of the general fund. Assuming we disagree, however, and in response to the court’s order granting review and adding a second issue, the legislature further contends that uncommitted settlement funds may not be credited to the program appropriation . . . because they are not “proceeds from services” as that phrase is used in the second statute. The Guts The settlement-funds statute, entitled “Deposit of settlement funds,” provides in its entirety that “[t]he attorney general shall deposit all settlement funds into the general fund.” This simple, declarative sentence identifies a class of state money (“settlement funds”) and imposes a single, narrow restriction on where that money must be deposited (into the state treasury, specifically “the general fund”). It says nothing whatsoever about where that money may or must be credited after it is deposited. Further, the “general fund,” . . . consists of “[a]ll moneys in the state treasury not specifically designated in any statute as belonging to any other funds.” In other words, everything except money belonging to “segregated funds” falls under the broad umbrella of the “general fund.” That includes not just the general purpose revenues of the general fund, but also program revenues credited to specific program appropriations. Thus, when settlement funds deposited into the general fund are credited to a specific program appropriation, those funds remain within the general fund. For this reason, the attorney general is complying with the settlement-funds statute when he deposits uncommitted settlement funds into the general fund, even if he also credits those funds to a program appropriation. The legislature nonetheless argues that the attorney general violates the settlement-funds statute when he deposits uncommitted settlement funds into the general fund and credits them anywhere except the general purpose revenues of the general fund. But to reach that conclusion, we would have to conflate two distinct terms—“credit” and “deposit”—or read restrictions on where money may be credited into a statute that contains none. Indeed, that is what the court of appeals did when it interpreted the settlement-funds statute as requiring that “[uncommitted] settlement funds must be deposited into the general purpose revenue fund.” As that sentence alone makes clear, the court of appeals conflated the settlement-funds statute requirement that uncommitted settlement funds be “deposit[ed]” into the general fund with a requirement that those funds also be credited to the general purpose revenues of the general fund. In other words, the court of appeals read into the statute a requirement that deposits of uncommitted settlement funds be credited to the general purpose revenues of the general fund. In defending the court of appeals’ decision, the legislature makes a similar argument, namely that we should read crediting restrictions imposed by other statutes into the single depositing restriction imposed by the settlement-funds statute. The problem with these arguments is that “we interpret the statutory language the legislature enacted, and will not read into a statute language that it does not contain or reasonably imply.” As many statutes demonstrate, when the legislature wants to direct both that money is to be deposited into the general fund and that it must be credited somewhere specific, it knows how to do so. But the settlement-funds statute does not even reference crediting, let alone restrict where the attorney general may credit money he deposits within the general fund. Accordingly, like the circuit court, we decline to read into the statute atextual restrictions on where deposits to the general fund may be credited. Therefore, we hold that the attorney general is complying with the settlement-funds statute when he deposits uncommitted settlement funds in the general fund, even if those settlement funds are credited to a specific program appropriation within the general fund. When we granted review in this case, we added a second issue, namely “does the language of a second statute authorize the crediting of civil action proceeds to that appropriation? In other words, do the services rendered by Department of Justice personnel in litigating a civil action on behalf of the State . . . or an executive branch agency constitute ‘proceeds from services’ under the second statute?” After reviewing the record and the briefs of both parties, and after hearing oral arguments, the court is too divided to reach a majority mandate on that issue. Generally, when the court is too divided to reach a majority as to the mandate, we affirm the decision under review. Under these circumstances, however, there is no decision to affirm with respect to the second statute. That is because neither the circuit court nor the court of appeals decided this question we raised, and as the circuit court previously explained, the legislature did not seek a declaratory judgment regarding the proper interpretation of the phrase “proceeds from services” in that statute in its complaint. Given that, we conclude that dismissal of this additional issue as improvidently granted is warranted.   Hagedorn Concurrence in part and dissent in part I agree with the majority that the court of appeals misconstrued the settlement-funds statute. However, I strongly disagree with the court’s failure to decide whether the monies received from settlements in civil cases litigated by the Department of Justice constitute “proceeds from services” under the second statute. The majority declares this an “issue” which we are now dismissing as “improvidently granted.” But we granted review in a case, and the court is not dismissing the case as a whole. Rather, it is declining to decide an issue—one that was briefed, argued, opined on by the court of appeals, and central to the dispute between the parties. Prior to this, I am unaware of this court dismissing an issue as improvidently granted. It is true that this court asked the parties, as a second issue, to address the meaning of the second statute. But we did not do so out of thin air. The court of appeals majority and dissent both opined on whether the attorney general may treat settlement funds as “proceeds from services” under the second statute, reaching different conclusions. We added this issue to ensure it was separately and fully addressed, and to ensure the larger dispute between the parties had a resolution. The court justifies its decision to dismiss an issue as “improvidently granted” on the grounds that the court cannot reach a resolution. However, we are not divided on the meaning of the second statute. In fact, a majority of the court agrees on the proper interpretation of the statute. Our disagreement is simply on how to style the mandate on the second issue, even though—regardless of how we label it—that particular postscript will have no practical effect on the parties in this case. The court’s inability to come together leaves the parties with no clarity about how to conform their actions to the law with respect to the second statute. It is most unfortunate that the court—even while we agree—cannot produce an opinion effectuating our agreement. The parties deserve better, and so does Wisconsin. I respectfully concur in part and dissent in part.  Bradley Dissent
Justice Ziegler did not join these three paragraphs: If an attorney makes a false statement of fact or law, she may be sanctioned for violating the rules of professional conduct for attorneys. Unfortunately, supreme court justices can deceive the People of Wisconsin with impunity. Reaching an opinion favorable to Democratic Attorney General Josh Kaul (who faces a contested election in November), the majority dodges the issue we asked the parties to brief . . . . . . . . The majority . . . acknowledges “[t]he default crediting rule is that money deposited into the general fund ‘shall be credited to the general purpose revenues of the general fund unless otherwise specifically provided by law.’” The majority refuses to apply the law, which favors the Republican-controlled legislature over Democrat Attorney General Josh Kaul. Lady Justice wears a blindfold, not blinders. The majority’s machinations have left insufficient time to convert my previously-drafted opinion into a dissent, so (consistent with precedent established by other members of the court) I reproduce below what the majority opinion should have been. This is not the first time justice has taken a back seat to political interests. The members of the majority extend the Democrats’ almost unbroken winning streak in litigation against the Republican legislature since the progressives took control. (Footnote citing 15 cases.) In Wisconsin as elsewhere, “[d]arkness descends on the Rule of Law.” Justice Ziegler joined all of the following paragraphs: Wisconsin’s money belongs to the People of Wisconsin. The People control the allocation and expenditure of Wisconsin’s revenues through their constitutional representatives in the Wisconsin Legislature. For decades, Wisconsin attorneys general have siphoned tens of millions of dollars belonging to the People from large multistate consumer protection and antitrust settlements, to various budget appropriations controlled by the Department of Justice (DOJ). The Wisconsin Legislature became aware of this practice as early as 2010, and has twice legislated to reassert constitutional control over the People’s revenues. Attorneys general have resisted these efforts, interpreting the legislature’s enactments in a variety of creative ways in order to continue spending the People’s settlement funds. The fight between Attorney General Josh Kaul and the Wisconsin Legislature over those settlement funds culminated in this litigation. Kaul claims before this court that the settlement-funds statute, a statute the legislature enacted to resolve the interbranch dispute over settlement funds, requires the attorney general only to “deposit” “settlement funds” to the “general fund” of the state treasury. That is correct. Kaul additionally claims a longstanding default rule controlling budget allocation in the Wisconsin budget statutes allows him to continue “crediting” those moneys to a DOJ program appropriation. That is incorrect. We affirm the Court of Appeals and hold that the settlement-funds statute requires the attorney general to deposit settlement funds to the “general fund” of the state treasury. A budget allocation statute further requires the attorney general to “credit” settlement funds to the “general purpose revenues of the general fund.” Under the latter, the attorney general may credit settlement funds somewhere other than the “general purpose revenues of the general fund” only if the legislature “otherwise specifically provide[s]” another location. A statute to which the attorney general points does not serve as an appropriation account for settlement funds. Under the law, the attorney general must give the People their money back. *** . . . . The legislature maintains the “settlement funds” collected by the attorney general are general purpose revenues, which the legislature controls through its budgeting and appropriations process. The attorney general considers the settlement funds to be program revenues, which the legislature has already appropriated by law, allowing the DOJ to credit them to a specific program appropriation for the DOJ’s own use. *** Once the attorney general has deposited all settlement funds into the general fund, the question remains where to credit them. The “general fund” contains both “general purpose revenues” and “program revenues.” A statute titled “Receipts and deposits of money,” provides the default rule: “All moneys paid into the treasury shall be credited to the general purpose revenues of the general fund unless otherwise specifically provided by law.” The word “shall” creates a mandate. *** Another referenced statute does not provide an exception to the default rule requiring “settlement funds” to be credited to the general purpose revenues of the general fund. . . . The attorney general must return constitutional control over the People’s revenues to the People. By Erik Reinthaler
WJI Intern The Wisconsin Supreme Court issued three decisions at the end of June addressing different aspects of Wisconsin's laws concerning mental health involuntary commitment and treatment. The cases--State v. N.K.B., Outagamie County v. M.J.B., and Waukesha County v. R.D.T.—involved involuntary medication, statutory deadlines in civil commitment proceedings, and appeals from expired recommitment orders. Although the cases arose in different contexts, each turned on the same question: how the statutory framework applies when procedures governing competency proceedings or involuntary commitments are challenged. In State v. N.K.B., the Wisconsin Supreme Court considered whether a circuit court could order involuntary commitment and medication under one set of statutes after a defendant had been committed under another. Wisconsin law establishes separate procedures for restoring a defendant's competency in a criminal case and for civilly committing someone because they are mentally ill and dangerous. The dispute centered on whether those procedures could be used interchangeably. N.K.B. had been found incompetent to stand trial and committed for competency restoration. After initially authorizing medication to restore competency for the criminal case, the circuit court later relied on a different statutory provision to continue ordering medication based on finding N.K.B. to be dangerous. The Supreme Court concluded that Wisconsin law did not authorize that approach. Although both the competency statutes for criminal cases and Wisconsin's civil commitment laws allow involuntary medication in certain circumstances, the court said the sets of statutes address different situations and establish separate procedures. A commitment for competency restoration does not give a court authority to order medication under the dangerousness provisions that apply in civil commitment cases, the high court said. Courts must use the statutory process the Legislature established for the specific type of proceeding before ordering involuntary medication. Outagamie County v. M.J.B. concerned the county’s violation of a statutory deadline and whether such a violation automatically invalidates an involuntary commitment. Wisconsin law generally requires two mental health professionals to evaluate an individual and provide written reports to counsel at least 48 hours before the final civil commitment hearing. In M.J.B.'s case, an examiner completed the required report on time but defense counsel did not receive access to the report before the 48-hour deadline because of the Labor Day weekend. M.J.B. argued that the missed deadline deprived the circuit court of competency to proceed and required the commitment order to be vacated. The Supreme Court acknowledged that the statutory deadline must be followed but rejected the argument that every violation requires reversal. Instead, it found that a commitment order should be vacated only if the delay affected the individual's substantial rights. In M.J.B.’s case, the county did not rely on the late report, the examiner who prepared it did not testify, and the delayed disclosure did not prejudice M.J.B’s ability to challenge the commitment. As a result, the error was harmless, the court said, affirming the commitment order. In Waukesha County v. R.D.T., the Supreme Court addressed whether a person may continue appealing an involuntary recommitment order after it has expired and, if so, whether alleged evidentiary errors in R.D.T.’s case required the order to be vacated. “Recommitment” means a court-ordered extension of an earlier commitment period. The county argued that R.D.T.’s appeal had to be dismissed because the recommitment order had expired. The justices disagreed, explaining that an expired recommitment order may continue to carry significant legal consequences, such as potential liability for the cost of care received during the recommitment and the effect on a future petition to restore firearm rights. Because vacating the order could affect those continuing consequences, the appeal was not moot. R.D.T. also argued that the circuit court improperly admitted hearsay evidence when ordering recommitment. The Supreme Court determined that any error, if it occurred, was harmless. Other, unobjected-to testimony independently supported the finding that R.D.T. met the standard for recommitment. Thus, the court affirmed the recommitment order. Note: We are crunching Supreme Court of Wisconsin decisions down to size. The rule for this is that no justice gets more than 10 paragraphs as written in the actual decision. The “upshot” and “background” sections do not count as part of the 10 paragraphs because of their summary and necessary nature. We’ve also removed citations from the opinion for ease of reading but have linked to important cases cited or information about them. Italics indicate WJI insertions except for case names, which are also italicized. Case: Rabiebna v. Higher Educational Aids Board Majority: Justice Annette Kingsland Ziegler (20 pages), joined in full by Justices Rebecca Grassl Bradley, Brian K. Hagedorn, and Janet C. Protasiewicz, and joined as to four paragraphs by Chief Justice Jill J. Karofsky, Rebecca Frank Dallet, and Susan M. Crawford Concurrences: Karofsky (11 pages), joined by Crawford; Dallet (8 pages), joined by Karofsky and Crawford  Ziegler Upshot We conclude that . . . the Grant Program violates the Equal Protection Clause of the Fourteenth Amendment. Accordingly, we affirm the court of appeals’ decision that the statute is unconstitutional and conclude that HEAB (Wisconsin's Higher Educational Aids Board) is enjoined from operating the Grant Program. Background The Grant Program is a financial need program that provides grants to particular race-, national origin-, ancestry-, or alienage-based groups of students. HEAB administers the Grant Program. In 1985, Wisconsin’s legislature enacted WIS. STAT. § 39.44 to provide taxpayer-funded grants through the Grant Program for “Black American,” “American Indian,” and “Hispanic” undergraduate students enrolled in Wisconsin private, nonprofit universities and colleges. In 1987, the legislature expanded the Grant Program to a student “admitted to the United States after December 31, 1975, and who either is a former citizen of Laos, Vietnam or Cambodia or whose ancestor was or is a citizen of Laos, Vietnam or Cambodia,” and to students attending Wisconsin’s technical colleges. . . . Additionally, grant eligibility requires the student to also be: a citizen or permanent resident of the United States; a Wisconsin resident; and “enrolled as a sophomore, junior or senior on at least a half-time basis in a technical . . . or a private [college] in Wisconsin eligible to participate in the grant program.” A student’s “grant award shall not exceed $2,500 per academic year,” and students are eligible for a grant for up to eight semesters. Students who are not Black American, Hispanic, American Indian, Laotian, Cambodian, or Vietnamese are categorically ineligible for any grant under the Grant Program. The Taxpayers object to their tax dollars being spent in a racially discriminatory manner. The Taxpayers sought a declaratory judgment that the Grant Program violates the Equal Protection Clause of the United States Constitution and Article I, Section 1 of the Wisconsin Constitution because students belonging to the preferred racial, national origin, ancestry, or alienage groups are eligible for the grants, while students of other racial, national origin, ancestry, or alienage groups are not. The parties filed cross-motions for summary judgment, addressing standing as well as the constitutionality of the Grant Program. *** The circuit court determined that the Taxpayers have standing to challenge the Grant Program, but upheld it as constitutional under Grutter v. Bollinger (a U.S. Supreme Court case), because HEAB “has a compelling interest in attaining in [sic] a diverse student body,” and “[t]he Grant Program promotes the diversity of student bodies by helping minority students with financial need remain enrolled in school and graduate.” . . . *** While the case was pending in the court of appeals, the United States Supreme Court issued SFFA (Students for Fair Admissions, Inc. v. President & Fellows of Harvard College). In SFFA, the Supreme Court struck down two universities’ practice of using race-based classifications to make college-admission determinations, concluding that the practice violated the United States Constitution’s Equal Protection Clause. . . . Bound by the Court’s ruling in SFFA, the court of appeals held that the Grant Program violated the Equal Protection Clause’s core principles and struck down the Grant Program as unconstitutional. Applying SFFA, the court of appeals held that diversity is no longer a compelling interest in higher education and concluded that the Grant Program is materially indistinguishable from the race-based admissions programs invalidated in SFFA. The court of appeals reversed the circuit court and enjoined HEAB from administering the program. Guts We hold that the Taxpayers have standing. In Wisconsin, taxpayers may challenge the illegal expenditures of public funds. In taxpayer actions, the complaining taxpayers must allege that the “taxpayers as a class have sustained, or will sustain, some pecuniary loss.” Because “a taxpayer [has] a financial interest in public funds . . . akin to that of a stockholder in a private corporation,” “[a]ny illegal expenditure of public funds directly affects taxpayers and causes them to sustain a pecuniary loss.” “This is because it results either in the governmental unit having less money to spend for legitimate governmental objectives, or in the levy of additional taxes to make up for the loss resulting from the expenditure.” The fact that the loss to any one, individual taxpayer may be minimal does not defeat standing. *** The following paragraphs were not joined by Karofsky, Justices Dallet and Crawford but remain the majority opinion: At the heart of the Equal Protection Clause is the principle that race-, national origin-, ancestry-, or alienage-based discrimination is unconstitutional except in the most extraordinary instances where such a remedy is required. That requires all individuals to be treated equally without regard to one’s race, ancestry, origin, or ethnicity. Under the Equal Protection Clause, the government must treat each citizen as an individual—not as one member of a class. The Constitution requires that every person “must be treated based on his or her experiences as an individual—not on the basis of race.” Consequently, “no State has any authority under the equal-protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens.” *** Statutes discriminating upon race . . . require the government to satisfy strict scrutiny’s two-step analysis. First, the racial classification must be used to “further compelling governmental interests.” Second, it must be “narrowly tailored,” i.e., “necessary,” to achieve that interest. If the statute fails at either step, then the statute fails strict scrutiny. *** We hold that HEAB has failed to demonstrate that the legislature’s goals of increasing diversity and equalizing educational opportunities for certain students are compelling in this instance. In the circuit court, HEAB argued that “the reason for the Grant Program, from its genesis, is to retain a diverse population of lawfully admitted students, who otherwise fail to remain in their programs at disproportionally high rates.” In HEAB’s view, “[t]he Grant Program serves the compelling interest of promoting the diversity of student bodies by helping minority students with financial need remain enrolled in school and graduate.” Under Grutter v. Bollinger, HEAB posited that the first “prong of strict scrutiny is met, as the [United States] Supreme Court has repeatedly held diversity in higher education is a compelling interest.” *** Here, HEAB’s first asserted interest—promoting the diversity of student bodies by helping minority students with financial needs remain enrolled in school and graduate—fails. At the statute's inception, the legislature sought to promote diversity in higher education by retaining a diverse population who fail to remain in the state’s higher educational programs at disproportionally high rates. Certainly, objectives rooted in diversity might seem compelling. But the SFFA Court concluded that the objectives identified by the universities as flowing from a diverse student body were “not sufficiently coherent” to constitute a compelling government interest. Here, HEAB has not even identified any objectives or benefits it hopes to promote or achieve through diverse student bodies at private and technical colleges. Thus, it is left to argue that diversity is a compelling interest in and of itself, a position that lacks support under current law. And, HEAB has failed to demonstrate how its second asserted interest—equalizing education opportunities for certain students by offering them financial aid—was compelling when the statute was enacted. Ensuring that all public educational opportunities are offered to all students is vital to a free and fair nation. The schoolhouse doors should be open to all. But before the government may impose a race-, national origin-, ancestry-, or alienage-based remedy, it must demonstrate through previous government-sanctioned discrimination, regulatory discrimination, legislatively demonstrated statistical findings, or otherwise that the problem it seeks to remedy actually existed when the statute was passed. None of HEAB’s data is from the time of the statute’s enactment. Its support stems from data produced decades later. HEAB’s data shows that between 2015 and 2016, 80% of students who received financial aid from the Grant Program either completed or were continuing toward completing their degree or certificate. Similarly, recipients’ graduation or retention rates were 85% in 2016 to 2017, 77% in 2017 to 2018, and 80% in 2018 to 2019. For Wisconsin technical colleges, HEAB asserts that “grant recipients graduated at more than double the rate of students who did not receive a grant, 69% to 29%.” Between 2019 and 2020, “85% of grant recipients reported that, without it, they either would not have been able to attend school, or would have faced difficulties in doing so.” *** Regardless of whether a compelling interest might exist, the Grant Program still fails because the statute is not narrowly tailored. Strict scrutiny’s second step requires the court to analyze whether the means chosen are narrowly tailored to achieve the legislature’s ends. Those “means . . . must be specifically and narrowly framed to accomplish that purpose.” *** According to HEAB, the Grant Program is narrowly tailored because “[i]t identifies specific groups with college attrition rates far above those of White and Asian students and creates very small, need-based scholarships to address that problem.” It provides statistics and experts’ opinions in support of its position that “a mere focus on socioeconomic status and using need as a basis would not provide the results that the schools currently obtain through the use of the [Grant] Program.” But HEAB’s argument fails to meet a narrow tailoring analysis, as it failed to “consider[] workable race-neutral alternatives.” And HEAB’s Grant Program is not narrowly tailored to achieve either of HEAB’s asserted interests. When the government is seeking to further a diversity interest in the higher-education context, the government may not use race as a dispositive factor. Instead, the government’s program may use race as one factor of many, but must “remain flexible enough to ensure that each applicant is evaluated as an individual and not in a way that makes an applicant's race or ethnicity the defining feature of his or her application.” Because the Grant Program’s statute uses race as the dispositive factor for either of HEAB’s asserted interests, neither survives. Under the Grant Program, race is not but one factor in a “highly individualized, holistic review”; race is the only factor. Either a student is, or is not, a member of the preferred racial group. Whether such financial benefits to an asserted interest in diversity or an equalization of education opportunities, making race the dispositive factor—and not one factor in a holistic review of each individual student—is fatal to HEAB’s case. The importance of this individualized consideration in the context of a race-conscious higher education program is paramount.  Karofsky Karofsky Concurrence In the wake of the Civil War, the Thirteenth, Fourteenth, and Fifteenth Amendments were ratified as part of the Reconstruction effort. The Fourteenth Amendment granted citizenship to formerly enslaved people, ensured the due process of law, and applied equal protection of the law to state governments. The Fourteenth Amendment embodies the aspirations of a country seeking to heal after being torn apart by the evils of slavery and the Civil War. Rather than turn a blind-eye to the scourge of racism and slavery, the Fourteenth Amendment’s Equal Protection Clause faces it head-on by demanding change and requiring equal protection of the laws for all people. Inherent in its language is a recognition of the wrongs of prejudice, discrimination, and injustice. The Fourteenth Amendment represents a nation striving to be a more perfect union. From the time it was ratified, forces worked to undermine the Fourteenth Amendment, and those forces succeeded in creating a racist retrenchment that has continued to the present. Today, 150 years after its ratification, some of our highest institutions continue to disregard the foundational promise of equality and continue to pull our nation backwards. Why have we not learned from our past? Why are we not willing to recognize the harms this country has caused to those who are marginalized, disempowered, or disenfranchised? Why, instead of wielding the Equal Protection Clause as a sword against racism, do we employ it to shield against the promise of equality for all? The answer appears to be because we have failed to fully recognize how societal and governmental practices have long continued to enforce a preference for White Americans and to burden Black Americans and those of other disadvantaged races or backgrounds. A recent example of that failed recognition is Students for Fair Admissions, Inc. v. President and Fellows of Harvard College. In SFFA the U.S. Supreme Court ruled that race-based affirmative action programs in college admissions violated the Equal Protection Clause. The Court reasoned that under the Equal Protection Clause all government action must be color blind because “[e]liminating racial discrimination means eliminating all of it.” The Court explained that, “[t]he guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color.” In concluding, the Court observed that universities have for too long “concluded, wrongly, that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned but the color of their skin. Our constitutional history does not tolerate that choice.” In short, the Court ruled that it is racist to remedy racism. Karofsky then discusses the dissenting opinions by Justice Sonia Sotomayor and Justice Ketanji Brown Jackson in SFFA, which, she wrote, "handily exposed the fault lines in the majority's opinion." *** I fully recognize and acknowledge that I am bound by the precedent set forth in SFFA and other cases decided by the U.S. Supreme Court when interpreting the Fourteenth Amendment. As such, I concur in the mandate of the majority of this court. Under SFFA, the statute cannot survive strict scrutiny. However, I also choose to write separately. I do so because I find it impossible to ignore the truths that Justice Jackson identifies. Those truths apply to real people here in Wisconsin. *** Educational disparities in Wisconsin are not limited to grades K through 12 and have continued after high school. Petitioners point to documented racial disparities for college-aged students. In the 1980s, Wisconsin documented significant disparities in both enrollment and retention rates between minority students (particularly Black, Hispanic, and Native American students) and White students at four-year public colleges. These problems combined meant that in 1983, degrees conferred upon minority students represented only 2.4% of all degrees awarded. Today, significant retention problems still exist for Black, Hispanic, and Native American students. At two-year institutions, about half of all Asian and White students complete a degree within six years, as compared to only about a quarter of Black students and a third of Hispanic students. Overall, Black students still have 43 percent lower odds of attaining an associate’s or bachelor’s degree as compared to White students after accounting for other factors. Clearly many students of color in Wisconsin leave high school and enter college with distinct disadvantages. That disparity is not about statistics or mere correlation. Rather, that disparity is about a reality where past state-sponsored racism continues to affect educational opportunities, and systemic racism continues to rob non-White people of equal educational opportunities. And as difficult and uncomfortable as that may be for some to acknowledge, it is the truth, and it cannot and should not be ignored. As Justice Jackson explains, requiring the state to “ignore the initial race-linked opportunity gaps . . . will delay the day that every American has an equal opportunity to thrive, regardless of race.” *** Evidence shows the program has been successful in increasing retention rates. HEAB reported that in recent years, between 77% and 85% of grant recipients either continued in school or completed their degree or certificate. For technical colleges specifically, receipt of a grant at least doubled graduation rates for students who received a grant and tripled graduation rates for Black students who received a grant (from 21.4% graduation rates for Black students who did not receive a grant to 64.4% for those who did). According to HEAB, 85% of grant recipients self-reported that without the grant they would have either dropped out of school or had significant difficulties in remaining. Despite this documented success, the grant program’s explicit reliance on race is fatal to its constitutionality for the reasons explained in Justice Dallet’s concurring opinion. A suggested alternative means of maintaining a grant program to improve retention would be to target individuals who are economically disadvantaged, since there is also a statistical correlation between economic disadvantage and low retention rates. While this alternative aligns with the Supreme Court’s ruling in SFFA, it falls short because it does not acknowledge the racial inequality underlying the problem. At bottom, if we truly want to return to the promise of the Fourteenth Amendment, we must first acknowledge inequalities based on race. Then, we must be willing to accept that the “fault and responsibility to remedy” these inequalities lies “with the government and society that perpetuated” them.  Dallet Dallet Concurrence
The state claims that there are disproportionately high dropout rates among Black, Native American, Hispanic, and certain Southeast Asian students at Wisconsin’s private and technical colleges. In an effort to help those students remain in school and graduate, the legislature adopted the statute at issue which provides them with need-based grants. Since eligibility for the grants is limited to students only of certain races, national origin, or alienage, the program is subject to strict scrutiny under the Fourteenth Amendment’s Equal Protection Clause. Plaintiffs, a group of taxpayers argue that the program cannot survive that scrutiny because it is not narrowly tailored to further a compelling state interest. I conclude that the Higher Educational Aids Board, the state agency responsible for administering the program, has not met its burden of establishing that the statute is supported by a compelling state interest, and thus that the program is unconstitutional. That is because the record does not support the Board’s assertions that there is a real-world problem with dropout rates among the eligible students at Wisconsin’s private and technical colleges, or that race, national origin, and alienage cannot be separated from that underlying problem. I write separately to explain this narrow and dispositive conclusion, and because the majority opinion’s efforts to subdivide the Board’s asserted interest into component parts and reject them piecemeal are unnecessary. Dallet discusses the lack of case law on what makes an asserted state interest "compelling." The Supreme Court has devoted more attention to the compelling-interest prong, however, in race-based Equal Protection challenges. To date, the Court has recognized two compelling interests that can justify narrowly tailored race-conscious laws or governmental policies: (1) preventing race riots in prisons, and (2) remedying identifiable past instances of discrimination. Importantly, the Court’s recognition of these interests as compelling in race-based Equal Protection challenges rested on the underlying factual record, and specifically whether that record established both that there was a real-world problem the race-conscious law or policy sought to address, and that race could not be separated from that underlying problem. In other words, the reason a state had a compelling interest in a race-based prison housing policy was in part because it demonstrated that existing racial tensions posed serious safety risks. Relatedly, the existence of a compelling state interest in adopting a race-based remedy for past discrimination depended on a showing of specifically identifiable instances of racial discrimination against individuals. And in both of these situations, race could not be separated from the underlying problem; race was the reason behind the imminent risk of violence in prisons and the prior discrimination against specific individuals. Likewise, the Court has also repeatedly rejected asserted state interests as not compelling when the state lacked evidence of the underlying problem it sought to address, or failed to show that race (or alienage) could not be separated from that problem. For example, the Court concluded that a generalized interest in remedying “past societal discrimination” was not compelling because it was based on “sheer speculation,” and could not “in any realistic sense be tied to any injury suffered by anyone.” Similarly, in rejecting a Texas law prohibiting non-citizens from serving as notaries public, the Court concluded the state’s asserted interests in ensuring familiarity with state law and notaries’ availability for testimony in later proceedings were not compelling. The reason why, the Court explained, was that Texas had no evidence that non-citizens could not familiarize themselves with state law or that “the unavailability of notaries’ testimony presents a real, as [o]pposed to a merely speculative, problem to the State.” The upshot of these cases is that in order for an asserted state interest to be compelling enough to support a race-based (or alienage- or national-origin-based) law or policy, it must be grounded on more than just speculation or unfounded empirical assumptions. Instead, a state has a such a compelling interest only if it establishes, at a minimum, that there is a real-world problem and that race (or alienage, or national origin) cannot be separated from that problem. *** When the legislature first adopted the grant program . . . it did so based on two reports: (1) a 1984 report by a joint committee created by the Superintendent of Public Instruction and University of Wisconsin System President “to study cooperative ways of eliminating or reducing causes leading to under-enrollment of minority students and to study factors affecting retention in post-secondary education;” and (2) a subsequent study conducted by the legislature itself. These reports focused only on data from the University of Wisconsin System, however, and included no information about retention rates for students enrolled in private colleges. Indeed, when discussing the prospect of creating a grant program for certain minority students enrolled in private colleges, the legislature’s report acknowledged that “no evaluation of need [for such a grant program] has been made.” Further, while the legislature’s report included data about enrollment rates of various student populations, it contained no information about retention rates and acknowledged that “[n]o data is available which indicates the need levels of the target population.” Thus, while these sources may have something to say about enrollment or retention at Wisconsin’s public universities, they do not show that students in the eligible groups were dropping out of Wisconsin’s private colleges at disproportionately high rates. *** Data collected in the decades since the statute was adopted fails to fill these gaps, or demonstrate the existence of disproportionate attrition rates among Black, Native American, Hispanic, and certain Southeast Asian students at Wisconsin’s private and technical colleges. To be sure, annual reports prepared by the Board demonstrate that the program is effective in the sense that students who receive grants are far more likely to graduate from college than those who are eligible for grants but don’t get them. But those reports do not include data on retention rates for all students at Wisconsin’s private and technical colleges, or for all such students with financial need. Without that baseline information, these reports provide no support for the Board’s claim that attrition rates are disproportionately higher among the groups eligible to receive grants under the statute. To summarize, when the statute was first adopted in 1985, and when it was expanded in 1987, the legislature had no basis on which to conclude that the eligible students were, in fact, dropping out of Wisconsin’s private and technical colleges at disproportionate rates, let alone that they were doing so for financial reasons. Although data from the decades since supports the conclusion that the program reduces attrition rates among students who receive the grants, that data also provides no basis for concluding that Black, Hispanic, Native American, and certain Southeast Asian students are dropping out of Wisconsin’s private and technical colleges at disproportionate rates. In short, there is no evidence in the record establishing a problem with retention at Wisconsin’s private and technical colleges, or that race cannot be separated from that problem because the eligible Black, Native American, Hispanic, and Southeast Asian students are the ones who are dropping out of those schools at disproportionately high rates. Without that evidence, the Board cannot meet its burden of establishing that the statute is supported by a compelling interest, and the program must therefore be struck down as unconstitutional. This conclusion is dispositive. Whether the interest underlying the statute is framed generally as reducing disproportionate dropout rates, or broken down into separate interests like equalizing educational opportunity and promoting diversity through improving student retention, the result is the same. Without empirical support in the record for the existence of the underlying problem and the fact that race cannot be separated from that problem, the Board cannot establish the existence of a compelling state interest, no matter how that interest is framed. For this reason, the majority opinion’s efforts to subdivide the Board’s asserted interest into component parts and reject them piecemeal are unnecessary. All that needs to be said is that the Board failed to meet its burden of establishing a compelling state interest in this case. *** Nevertheless, there is still some room for optimism. If the Supreme Court considers it self-evident that the government has a compelling interest in, for example, preserving “public confidence in judicial integrity,” or “protecting the integrity of the Medal of Honor,” then it certainly ought to conclude that states have a compelling interest in ensuring that all of their students—regardless of race, national origin, alienage, or anything else—stay in school and complete their education. Indeed, as the Court put it in Brown v. Board of Education of Topeka, “it is doubtful that any child may reasonably be expected to succeed in life if he [or she] is denied the opportunity of an education.” The state’s interest in ensuring equal access to educational opportunity is no less meaningful when the barriers to obtaining a degree today may be financial, rather than legal or social. Despite Plaintiffs’ counsel’s assertions at oral argument to the contrary, the Supreme Court has never said that two and only two compelling interests—preventing race riots and remedying past instances of discrimination against specific individuals—could ever justify race-conscious government policies. Thus, while the Board here failed to demonstrate a compelling interest in adopting this statute to address disproportionately high attrition rates among Black, Hispanic, Native American, and certain Southeast Asian students at Wisconsin’s private and technical colleges, the result may be different for other laws with greater factual support. Accordingly, I respectfully concur.  Entrance to the Wisconsin Supreme Court hearing room at the Wisconsin Capitol in Madison. Photograph by Alexandria Staubach. Ziegler By Alexandria Staubach
The Wisconsin Supreme Court has revoked the licenses of three attorneys this year, and in each case Justice Annette Kingsland Ziegler wrote an identical short concurrence highlighting that when the high court revokes a license, it may not have the effect the public thinks. “I write separately to point out that in Wisconsin the ‘revocation’ of an attorney’s law license is not truly revocation because the attorney may petition for reinstatement after a period of five years,” said Ziegler in each concurrence. “I believe that when it comes to lawyer discipline, courts should say what they mean and mean what they say,” she wrote. The concurrences were joined by Chief Justice Jill Karofsky and Justices Rebecca Grassl Bradley, Brian Hagedorn, and Janet Protasiewicz—thus, a majority of the court. The attorney conduct in question ranged from sexual advances made toward two incarcerated clients, to the sexual assault of a client’s ex-partner in a courthouse, to a repeated pattern of converting client funds into personal funds totaling $671,545 over years. Revocation is the most extreme sanction imposed by the high court. Supreme Court Rule 22.29(2) governs petitions for reinstatement after license suspension or revocation. It provides that an attorney whose license has been revoked can petition for reinstatement after five years. The Court has heard petitions for changes to the rule, most recently in 2019. Then, the Office of Lawyer Regulation petitioned the Supreme Court to permit permanent attorney license revocation. The court denied the petition. Ziegler dissented at that time, joined by Grassl Bradley and Hagedorn, saying there may be cases warranting permanent revocation of an attorney’s license. “For me, the purpose of a permanent revocation is far more about protection of the public, including the public's trust and confidence in the legal system, than it is about punishing the lawyer,” wrote Ziegler then. While it is true a petition for reinstatement can always be denied by the court, Ziegler argued the mechanism wastes the time and resources of everyone involved. “The option of permanent revocation as one of a number of permissible sanctions for lawyer misconduct would enhance the public's confidence in the disciplinary system,” she wrote then. Grassl Bradley’s term ends in less than two months. But the inclusion of Karofsky, Hagedorn and Protasiewicz in Ziegler’s recent dissents suggests that a similar rule petition to create a permanent revocation penalty could succeed with the current court. Ziegler is set to retire at the end of July 2027, after serving 20 years on the court. She has said she will not run for reelection this coming April.  Entrance to the Wisconsin Supreme Court. Photograph by Margo Kirchner. By Alexandria Staubach Wisconsin Supreme Court Chief Justice Jill Karofsky last week made good on a November 2025 promise to hold a public hearing regarding judicial recusal rules. The hearing on June 4 addressed a rule change petition filed by five retired judges regarding recusals related to campaign donations. Sarah B. O’Brien, John W. Markson, Richard G. Niess, J. David Rice, and Richard J. Sankovitz filed the petition in January. Karofsky opened the public hearing by quoting comments submitted by Wisconsin Justice Initiative Action in support of the rule change. Karofsky said these WJI Action comments “put it well”: When people trust the judicial system, they are more likely to accept court decisions and maintain confidence in the rule of law. If the public believes our judges and justices are fair, impartial, and free from influence by money or politics, they are more likely to follow the law, serve on juries, and engage with the legal process in good faith. Without that confidence, compliance weakens and the authority of the law is diminished. At an open conference immediately following the hearing, the court determined that a new rule, if any, will take shape after further study. The Supreme Court indicated it would create a committee to examine the issue. A written order setting up the committee is expected in the near future. The hot bench during the three-hour hearing raised multifaceted questions about the nature of judicial campaigns in Wisconsin. Two questions drove the hearing: what judges or justices can say about their values when campaigning and whether significant campaign contributions are grounds for recusal. Justice Rebecca Grassl Bradley voiced heavy skepticism and asked petitioners’ representative Niess whether he thought “it’s impacted the reputation of the court to have justices that freely express how they feel about issues that they know are going to come before the court.” Niess said that on the question of campaign speech, “for better or worse the judges in this state are elected and the electorate needs to be fully informed about what the past positions of candidates have been on all issues.” “The problem that we are trying to resolve, in part, is the public perception that the court can be for sale. It isn’t a universal perception, but it is a broad-based perception. Part of the problem is that there is very little discussion by this court when it chooses not to recuse,” he argued. Since Citizens United, the U.S. Supreme Court decision that characterized corporate campaign spending as free speech, both statements and spending have been considered to raise constitutional questions. In their written memorandum supporting the petition, the retired judges indicated that the proposed amendments mainly “flip the implied presumption to favor recusal where the source or amount of any campaign contribution or independent communication raises an objectively reasonable question about a judge's ability to preside on a case impartially.” The proposed changes would also clarify “that statements of a judge or judicial candidate, other than those that expressly commit the speaker to rule on a case or issue in a particular manner, are not grounds for recusal,” they said. “It might make sense what you’re saying if someone is going to rule as a judge consistent with what their values are, perhaps that should be something they say to the public,” said Justice Annette Ziegler at the hearing. “But if someone is not a judge that is going to rule based on their personal values and instead just look at the law and figure out what the law says and reach a conclusion based solely on the law and the facts in that case, then your personal opinion is absolutely irrelevant to the determination you make as a judge.” Niess disagreed. “If the law is clear the law has to be followed irrespective of the personal beliefs of the judge,” he said in response. But he noted that “there are so many areas where the law is not clear and you are attempting to clarify it, and whether or not you think it is appropriate to bring your values to bear, they are going to somehow inform your view on the intricacies between these various issues that are not resolved by the current law.” “The personal beliefs (of a judge) are relevant to the electors to the people of the state of Wisconsin to decide who they want on their court,” he said. Karofsky seemed to agree with Niess on the point. “We have all looked at the law and wished it said something different than it says, but I took an oath to uphold the constitution of the United States and the state and the statutes,” said Karofsky. “I think you the voters deserve to know who I am as a person and I will make a commitment to continue to follow the rule of law when I put on a black robe and sit behind the bench,” she said. Justice Brian Hagedorn wrestled with the Niess over the petition’s objective. “A lot of this feels like PR coverage to me that doesn’t really do anything,” said Hagedorn. “I’m trying to figure out what problem you’re trying to solve that isn’t being resolved, who should have recused that’s not recusing.” “These things were not problems historically,” said Hagedorn, talking about deep conflicts of interest without recusal in the early days of the U.S. Supreme Court. Because the proposed rule change would restrain discretion around campaign contribution recusals, Hagedorn asked what kind of climate the state is encouraging regarding campaigns. “What kind of legal culture do we want in Wisconsin?” he asked. “Do you think we should be concerned at all about greenlighting what’s become of our elections?” While much of the hearing focused on what judicial candidates say on the campaign trail, Justice Rebecca Dallet was quick to point out that campaign spending has long signaled political alignment and personal values. “Doesn’t money communicate values?” she asked. “How are we opening up some flood gate or greenlighting?” “If you’re taking money from the Republican party, that communicates something, or the NRA,” she said. Current campaign-related recusal rules were drafted by Wisconsin Manufacturers and Commerce in conjunction with the Wisconsin Realtors Association. They were adopted with little change by a conservative Supreme Court in 2010, according to the memorandum filed by the petitioners in support of the rule change. WMC is historically a significant donor to conservative candidates. The current rules “foster a presumption against recusal based solely on the source or the amount, however large,” they wrote. Since 2010, “the amount of money contributed to Supreme Court elections, and even to some circuit court elections, has exploded,” they wrote. While record breaking spending occurred in 2007 and 2008, spending has continued to rise in the wake of the rule change. Wisconsin’s 2023 Supreme Court election between Justice Janet Protasiewicz and former Justice Daniel Kelly broke national records as the most expensive race in U.S. judicial election history, with $51 million in spending by the campaigns and third parties. The 2024 Supreme Court race between now-Justice Susan Crawford and Judge Brad Schimel broke the record again, with more than $100 million in spending by the campaigns and third parties. “It is not a stretch to conclude some cause-and-effect relationship,” wrote the retired judges in their memo. WJI Action, an advocacy ally of Wisconsin Justice Initiative, submitted written comments in support of the petition. As indicated by the quotation Karofsky read, WJI Action focused on the need for transparency by the judiciary to maintain public trust. WJI Action board member Jill Kastner spoke at the hearing in support of the petition, emphasizing those reasons. "Because this really does impact my practice, it (public lack of faith in the judiciary) can make it more challenging to convince my clients to utilize the justice system as opposed to taking matters into their own hands,” said Kastner. She suggested urgency in strengthening recusal rules. Kastner said she was "not under the false notion” that this proposed rule change would end public perception that judges are bought and paid for. “But an assumption in favor of recusal and greater transparency—that parties are allowed to put forth their evidence and reasoning for recusal—would result in a greater sense of transparency and trust," she said. Several other groups wrote in support of the intent of the petition but worried that the specific changes proposed had the potential to dampen political speech by attorneys and judges, failed to account for political action before any new rule took effect, and could leave courts shorthanded. Supreme Court justices, for instance, do not have substitutes who can step in for them if they recuse. While those commenters generally expressed support for reform, most asked the court not to adopt the rule change petition in its current form. “The proposed rule may swing the pendulum too far,” Law Forward in its written comments to the court. Attorney Rachel Snyder spoke at the hearing on behalf of Law Forward. She called the hearing an "excellent first step" but cautioned against creating a rule that would chill First Amendment speech. Law Forward was also concerned about whether the rule would be retroactive, punishing lawyers and judges for past conduct if changes are made. Attorney Danielle Schroder spoke on behalf of Wisconsin Association for Justice. She urged cautious change. Professor Robert Yablon, co-director of the University of Wisconsin Law School’s State Democracy Research Initiative, suggested at the hearing that the court find "palatable" means to "dispel mistrust when jurists are deciding on their own recusals." He also spoke on more technical concerns with the proposed rule change. Protasiewicz asked him how substitutions should work under a judicial structure in which judges are elected. Yablon suggested the high court in particular might identify a few judges from the lower courts at the start of each session who could be randomly tapped to substitute at the high court if recusal is necessary. With Yablon, Hagedorn returned to questions on whether the recusal rules were in fact creating a presumption that jurists are "not to be trusted." Yablon suggested that a general "slippage of trust that people have generally in institutions" was to blame, having "less to do with the recusal regime and more to do with the influx of money." At the open conference following the hearing, Bradley disagreed with the court’s formation of a study committee. “I oppose the creation of this committee because I think it will ultimately waste the time of all of the members,” she said. “If the committee proposes anything that represents true reform in the recusal arena, the court as currently constituted will never adopt anything that will interfere with the successful formula for electoral success, which is to telegraph how you will rule on cases and receive up to $10 million dollars from a party and then sit on that party’s cases,” she said. WJI Action's comments on the rule petition are found below. By Alexandria Staubach There’s some consensus among lawyers that ethics rules already cover the responsible use of generative artificial intelligence in court submissions, but a recent petition to the Wisconsin Supreme Court is asking for more. The rule change petition seeks to mandate explicit disclosure to the court and disclosure by the court when generative AI is used in the preparation of everything from court filings to opinions. The petition was filed by frequent pro se (self-represented) litigant Jay Stone. Stone’s petition “has a lot of the hallmarks of a ChatGPT document itself,” attorney Stacie Rosenzweig recently remarked to Wisconsin Justice Initiative. Rosenzweig, a partner at the law firm Halling & Cayo, specializes in legal ethics and professional responsibility. She said by email that while it would be unusual for Stone’s petition to be adopted by the Supreme Court as is, the petition “could spur some further discussion or an invitation from the Court for comments.” Rosenzweig discussed “a bit of debate” in ethics circles about the necessity of additional guidance. According to personal injury attorney Ann Jacobs, Wisconsin’s code of legal ethics should be sufficient to cover the landscape regarding AI use. Jacobs recently gave a continuing legal education presentation on the topic. She told WJI that rules regarding confidentiality, candor, and competence are sufficient to protect against the dangers of generative AI. The trouble, though, she said, is that those rules are not always followed. For example, earlier this year Kenosha County District Attorney Xavier Solis found himself in hot water after failing to disclose the use of AI in a brief he submitted to a court. The brief included hallucinated (made-up or fake) citations and ultimately resulted in sanctions. In late 2025, a misattributed citation by Wisconsin Supreme Court Justice Annette K. Ziegler in a dissent regarding congressional redistricting had some speculating about the use of AI. “It looks and quacks like an AI generated error,” said Jacobs. And there are now a handful of databases tracking legal decisions in which generative AI produced hallucinated content. One demonstrates that internationally, United States judges and arbitrators are by far the most frequent offenders in this area, with 871 offenses. Canada (139 offenses) and Australia (73 offenses) are next in line. The most prolific of the watchdog projects is run by Damien Charlotin, a senior research fellow at HEC Paris, a top-ranking European business school. Another newer and less robust Charlotin database tracks legal cases in which generative AI was used as evidence to argue or prove a point. But the use of AI itself isn’t the issue. Instead, the problem is the technology’s propensity for inaccuracy. Courts across the United States have sanctioned, fined, and otherwise provided extreme consequences for attorney misuse of generative AI, primarily viewing them as ethics violations. In Wisconsin, Supreme Court Rule 20:1.1 governs attorney competence about technology: “(A) lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology,” the rule says. Other rules regarding client confidentiality and candor to the court supplement that rule. For example, using AI may involve an attorney providing sensitive client information to an unsecure system. That implicates a client’s confidentiality and triggers a lawyer’s obligation to communicate with the client, Jacobs said. Rule 20:3.3 requires candor to the tribunal. “You cannot have read a fake case, which means your work has not been thorough,” said Jacobs. In July 2024, the American Bar Association issued a formal opinion on attorney use of generative AI. It cited existing ethical obligations “such as those relating to confidentiality, communication with a client, meritorious claims and contentions, candor toward the tribunal, supervisory responsibilities regarding others in the law office using the technology and those outside the law office providing (generative AI) services and charging reasonable fees.” But what’s happening in practice is nevertheless evolving, shaped by local rules and sanctions when things go awry. Kenosha County (where petitioner Stone lives) and Waukesha County have local rules requiring disclosure to the court regarding AI use.* Complicating the issue is little specific instruction for litigants who represent themselves—which generative AI may encourage more people to do. Some, like Stone, believe that upfront disclosure of generative AI use should be a requirement moving forward. No stranger to litigation, Stone has a handful of what he calls “election integrity” cases pending in the Court of Appeals and lower courts. He used AI in many of them. “It’s a tremendous tool,” Stone said on a call with WJI. “But it can be very harmful.” Throughout his litigation, Stone observed there was no AI disclosure requirement for pro se litigants. Holding pro se litigants to the same standards and expectations of attorneys is based on caselaw. He feels disclosure is the right way to go. “I believe in full transparency,” he said. The current rule change petition would require a self-represented litigant who uses a generative AI tool in preparing any filing or other written work product submitted to a state tribunal to independently review and verify the accuracy of all statements of fact and law and the authenticity of all citations before filing. The pro se litigant would have to disclose such use in the same manner as an attorney. The proposed rule emphasizes that existing ethical duties of competence, confidentiality, candor, and supervisory responsibility apply fully to the use of AI tools, Stone wrote in the petition. For Rosenzweig, a rule applicable to pro se litigants makes more sense as a rule of civil procedure. “Perhaps disclosure rules, more generally, and applied across the board, are a good stopgap,” Rosenzweig said. “(T)hey’ll remind people—lay and lawyer—of their obligations.” But we may have already entered a world where most people use AI without even knowing it. “I think eventually we won’t need disclosure,” said Rosenzweig. “Either AI will fizzle as a fad, or will be integrated into so much that affirmative disclosures would be as useless as disclosing whether you used Google or a cloud server.” The Supreme Court has not yet taken any action on Stone's petition, known as petition 26-02. *Correction: The initial version of this story indicated that Kenosha and Waukesha counties were the only circuit court jurisdictions with a local rule about AI use. Following publication, WJI learned that Portage County, too, has a rule requiring disclosure of AI use (Portage County Circuit Court Rule 2.15). If you know of other Wisconsin circuit courts with AI disclosure rules, please let us know.  Suggested disclosure from Stone's rule change petition. By Margo Kirchner In last week’s Wisconsin Supreme Court candidate debate, Wisconsin Justice Initiative’s legal challenge to the spring 2020 ballot question was the foundation for one of the final questions. WISN 12 in Milwaukee held and broadcast the debate between Wisconsin Court of Appeals Judges Chris Taylor and Maria Lazar on April 2. About 10 minutes before the end, WISN moderator Matt Smith asked Taylor why she had voted against the constitutional amendment known as Marsy’s Law when she was a state legislator. Taylor served in the Wisconsin Assembly prior to appointment as a circuit court judge in 2020. After Taylor’s answer, discussing her constituents' concerns with the provision, Smith turned to Lazar. He asked her about Marsy’s Law as follows: “Judge Lazar, critics have challenged the wording on the ballot as unclear and insufficient. The court, though, in a 6-1 ruling, disagreed with that. It has led to some questions, including new debates, about what information should be made public and when. Are there negative, unintended consequences to Marsy’s Law?” Lazar first answered that the amendment “is a very good, strong law,” but admitted that “there are some issues that have come up” for the courts to decide. “I think there are some points that will have to be addressed, but overall it has been astonishingly effective and important,” she said. She attributed issues with the amendment to the drafters not knowing all the possible perspectives or effects. “It’s not like we have lawyers in our Legislature drafting most of these bills,” she said. Though Smith did not name WJI or mention the caption of the court decision, his question referenced the lawsuit WJI brought in 2019 to challenge the Marsy’s Law ballot question. WJI argued that the ballot question not only failed to fully and fairly inform voters about the contents of the amendment but, in fact, misled them. WJI argued that the ballot question failed to inform voters of the amendment’s reduction of rights of an accused. An accused's right to a fair trial, for instance, was deleted from the constitution. The Supreme Court in 2023 ruled against WJI, six to one, on a ground that had not been raised by the state defendants and that two justices sprung on the parties at oral argument. The decision gave the Legislature broad freedom to describe proposed amendments, regardless of voters being confused or misled by the ballot questions. Voters are not entitled to a fair explanation of what they are voting on. Justice Brian Hagedorn wrote for the majority that the Wisconsin Constitution “does not require any substantive discussion of the amendment in the ballot question submitted to the people. No explanation or summary is constitutionally commanded.” A ballot question is deficient “only in the rare circumstance that the question is fundamentally counterfactual such that voters were not asked to approve the actual amendment,” he wrote. Justice Rebecca Bradley concurred, saying that “(t)he constitutional purpose of a ballot question . . . is not to educate voters.” “Voters are trusted to inform themselves,” she wrote. A recent bill, AB 207, would have provided voters with significantly more information. Introduced by Republicans, it ended up with bipartisan support in the Assembly, where it passed out of committee with a unanimous vote in October 2025 and then passed the full Assembly in November. The bill would have required the Legislature to draft a one-page disclosure notice for voters with the entire text of the actual proposed constitutional amendment (not just the ballot question), a plain language summary of existing law, and a plain language explanation of the effect of the proposed amendment. The disclosure notice would be published on the Wisconsin Elections Commission’s voter registration website for at least 30 days before an election, posted on each county clerk’s website, mailed with absentee ballots, and posted at the polls on election day. Sponsor Rep. Jerry O’Connor (R-Fond du Lac) stated in written testimony in both chambers that “(n)o one likes to be at a disadvantage when asked to take a position on a crucial matter such as amending the state Constitution. Yet that is how we treat our voters when we present the voters with a referendum question on a ballot. This is unfair and unreasonable. We can and should do better.” Rep. Dan Knodl (R-Germantown) stated in written testimony urging passage, “Ballot questions are not written to explain a proposal, they’re written to implement it.” He noted that the bill "strengthens voter trust through transparency and accuracy." The Senate received the Assembly’s approved bill in November. However, the bill did not progress through the Senate’s Committee on Licensing, Regulatory Reform, State and Federal Affairs. The bill died when the Legislature adjourned in March 2026. The Senate’s version of the bill, SB 205, received a hearing in that same committee in November 2025, but the committee failed to vote on it. As for Lazar’s statement that the Legislature does not have lawyers drafting bills, in the case of the Marsy’s Law constitutional amendment, it might not have been drafted by people in Wisconsin at all. Marsy’s Law has been the personal cause of Broadcom founder, billionaire, and later convicted drug felon Henry Nicholas III, following the tragic murder of his sister. Beginning with a Marsy’s Law constitutional amendment in California in 2008, he and his organizations have advocated for substantially similar amendments in at least 20 states. Marsy’s Law for Wisconsin, LLC spent over $1.5 million from January 2017 through June 2019 lobbying the Legislature to approve the amendment and ballot question so the matter could be sent to voters in spring 2020.  Wisconsin Court of Appeals Judges Maria Lazar (L) and Chris Taylor (R) vie for an open seat on the Wisconsin Supreme Court. The election is tomorrow, Apr. 7. By Alexandria Staubach As Wisconsin prepares for a Supreme Court election between two appellate judges, examining judicial track records is helpful for understanding a candidate's potential impact on the high-court bench. Past rulings can provide insight on how the candidates approach the cases before them, reason and interpret law to get to their decisions, and explain those decisions to lower courts and the public. Court of Appeals Judges Maria Lazar and Chris Taylor vie for an open seat on the Supreme Court. The election is April 7. Voters may be familiar with some of the high-profile roles each judge held before their appellate court positions. Taylor served as the public policy director for Planned Parenthood for a decade, held a seat in the Wisconsin Legislature, then became a Dane County Circuit Court judge. Lazar worked in private practice for business clients, had a high-profile position in then-Gov. Scott Walker’s Department of Justice, and then was a Waukesha County Circuit Court judge. Voters are likely less familiar with the candidates’ tenures on the Court of the Appeals. The work of the Court of the Appeals is inherently blander than the candidates’ lawyer or trial judge work, but it is likely much more representative of what they will encounter on the high court. With 16 judges employed across four districts, the Court of Appeals resolves appeals covering every area of the law. Lazar sits in District 2 (comprising the counties surrounding Milwaukee County) and Taylor sits in District 4 (comprising Dane County and the southwest portion of the state). On average, a District 2 judge would resolve 185 cases in a year and a District 4 judge 132. Unlike the Wisconsin Supreme Court, the appeals court rarely hears oral arguments, however. Sparked by an audience question at a recent presentation by WJI about the election, WJI has examined a variety of appellate opinions authored by the two candidates and is providing a selection of them for voter information. District 2 (Lazar) is the busier of the two jurisdictions and sometimes lands high-profile cases, such as those involving the Legislature or Wisconsin Department of Justice. District 4 (Taylor) is the next busiest appellate court and includes most appeals from Dane County Circuit Court. For each judge we’ve included three opinions on which she was the lead author: one criminal case, one family law case, and one civil case. All but one are published cases. We could not find a recent published opinion by Lazar directly related to criminal law so have provided an unpublished opinion she authored. Generally, published opinions are considered precedent and can be cited as controlling law for later cases, while unpublished authored opinions may be cited only for persuasive purposes. Later this week, the Wisconsin Supreme Court will hear oral argument over another opinion Lazar authored regarding the use of state settlement funds. Below we quote short excerpts from each case and link to the full opinions for those who want to review more of the candidates’ reasoning and writing. We have removed citations for ease of reading. Italics are WJI’s additions. The candidates are presented alphabetically by last name.  Court of Appeals opinions by Judge Maria Lazar Wildwood Estate LLC v. Village of Summit — Civil An individual’s “right to maintain control over his [or her] home, and to be free from governmental interference, is a private interest of historic and continuing importance.” The “valuable rights” associated with this interest include “the right of sale, the right of occupancy, the right to unrestricted use and enjoyment, and the right to receive rents.” It is for this reason that municipalities may not pass zoning ordinances under the “guise of the police power” without following the procedural steps designed to protect citizens’ rights. Because the Ordinance changes the allowed uses of property and includes multiple indicia of traditional zoning ordinances, the circuit court correctly concluded that it was a zoning ordinance. And, as the circuit court noted, the Village’s passage of the Ordinance sidestepped the proper process to enact a zoning ordinance. We conclude that the Village did violate Wildwood’s procedural due process rights. Danielson v. Danielson – Family law The ultimate question is whether social security benefits expected for one spouse fall within the factors a trial court should consider in achieving an equitable marital property division. Clearly, the court is to consider the “contribution of each party to the marriage” and the salaries the spouses earned. The trial court should also look to the “economic circumstances of each party, including pension benefits,” even if it determines not to divide them between the spouses. Moreover, we conclude that social security benefits are “substantial assets not subject to division by the court” and count as “other factors [that] the court may in each individual case determine to be relevant.” Our supreme court has “repeatedly stated that ‘the aim of all statutory construction is to discern the intent of the legislature,’ and that a ‘cardinal rule in interpreting statutes’ is to favor a construction which will fulfill the purpose of the statute over a construction which defeats the manifest object of the act.” State v. Baker – Criminal The State charged (Ashley Rae) Baker with one count of carrying a concealed weapon without a license. Baker filed a motion to suppress the evidence, asserting that (Officer Michael) Moore did not have a legal basis to search her purse without a warrant. At the hearing on Baker’s motion, Moore was the sole witness. He testified to the facts above and stated that his search of the purse was based on the “totality of everything,” including his observation of Baker coming out of a house known for drug activity and the marijuana found in the vehicle. He expressed a concern for “the potential for any concealment of other items,” saying that “any time that someone gives us a breadcrumb” it could be “to deter finding the loaf of bread.” He further noted that he believed Baker may have had paraphernalia or drugs on her person or with her, because (in addition to the shake found throughout the vehicle) the marijuana found in the center console area “would have … been essentially under her left elbow” while she was in the front passenger seat. …. …. Baker was seen leaving a house known for active drug activity after a ten-minute visit and was riding in a car that had marijuana and drug paraphernalia throughout, including approximately one half gram of marijuana and a marijuana grinder between her and the driver—“essentially under her left elbow.” We agree with the circuit court’s assessment that this evidence is sufficient to establish a “nexus between the defendant and the drugs in the car.” This is not a case of guilt by association—which could be said if, for example, the only marijuana found prior to the search of Baker’s purse had been the marijuana blunt in her companion’s pocket—but rather a case where Moore’s belief that Baker was committing the crime of possessing marijuana was reasonable under the totality of the circumstances.  Court of Appeals opinions by Judge Chris Taylor
Hubbard v. Neuman – Civil We reject Dr. (Carol) Neuman’s argument that it “would lead to absurd and unworkable results” if a physician who does not perform the procedure at issue has a duty to inform the patient about the availability, benefits, and risks of reasonable alternate treatment options. According to Dr. Neuman, this would result in discouraging “the intra-disciplinary communication and cooperation that is critically important to effective patient care.” For instance, Dr. Neuman asserts that, if this duty is not limited to the physician actually performing the surgery or procedure, then all family practitioners or primary care providers who ever refer a patient to a specialist could be liable if the referring physician fails to disclose the risks associated with the care or treatment provided by the specialist. As explained above, the allegations in the complaint, and the reasonable inferences, assert that Dr. Neuman was (Melissa) Hubbard’s treating OB/GYN, had expertise as an OB/GYN in the treatment options for pelvic endometriosis, diagnosed Hubbard’s pelvic endometriosis, was actively involved in the planning and preparations for the removal of Hubbard’s ovaries during the February 2018 surgery, initially planned to perform the removal of Hubbard’s fallopian tubes, ovaries, and uterus during that surgery, and recommended that Dr. McGauley remove Hubbard’s ovaries. Recognizing that Hubbard has alleged sufficient facts to support a claim that Dr. Neuman had a duty to inform Hubbard in this situation protects Hubbard’s ability “to intelligently exercise [her] right to consent or to refuse the treatment or procedure proposed.” J.J.D. v. M.W. – Family law To protect the rights of a parent in a TPR (termination of parental rights) case, if the parent seeks to admit to grounds supporting the termination, “[t]he circuit court must engage the parent in a colloquy to ensure that the plea is knowing, voluntary, and intelligent.” “This colloquy is governed by the requirements of WIS. STAT. § 48.422(7) and notions of due process.” …. Our supreme court has identified additional colloquy requirements to protect a person’s parental rights. A circuit court must ensure that the parent is “informed of the statutory standard the court will apply at the second stage” of the TPR proceedings; that is, that the child’s best interest will govern. The court must also ensure that the parent understands potential outcomes of the second stage, though it is not required to “‘inform parents in detail of all potential outcomes.’” Rather, the court must determine that the parent understands that a termination of parental rights or dismissal of the TPR petition are two possibilities. State v. Anderson – Criminal The caution with which we are instructed to approach juvenile confessions is with good reason. As the United States Supreme Court has recognized, “children ‘generally are less mature and responsible than adults,’” “lack the experience, perspective, and judgment to recognize and avoid choices that could be detrimental to them,” and “are more vulnerable or susceptible to … outside pressures.” As our supreme court has recognized, children are “more likely to want to please and believe police officers because they are authority figures” and “are incapable of fully realizing the consequences of their decisions.” Accordingly, the same police pressure that may not be coercive for an adult suspect may be coercive for a juvenile suspect. Marquette University Law School poll shows that most voters not "tuned in" to Supreme Court race2/25/2026  Marquette University Law School's Lubar Center Director Derek Mosley (left) and Marquette University Law School Poll Director Charles Franklin (right) at the recent poll results announcement on Feb. 25, 2026, at the law school. Photograph by Margo Kirchner. By Margo Kirchner
The "punchline" of the latest Marquette University Law School Poll is that Wisconsin voters just have not "tuned into the races" this year, said poll director Dr. Charles Franklin at a lunch-time event at the law school today. Two-thirds of registered voters participating in the latest poll are still undecided regarding both parties' primary candidates for governor and the Supreme Court race, said Franklin. While the lack of interest in the partisan primary races could be explained by the length of time until they occur in the second half of the year, the nonpartisan Supreme Court election is less than six weeks away. Franklin compared the public's awareness of last year's Supreme Court race to awareness of this year's race. In February 2025, 39% of registered voters polled had heard quite a bit about the April 2025 election between Susan Crawford and Brad Schimel. This year, just 6% of registered voters in the poll conducted between Feb. 11 and 19 reported having heard much about the Supreme Court race between Wisconsin Court of Appeals Judges Chris Taylor and Maria Lazar. Out of likely voters, 15% reported a likely vote for Lazar, 22% reported a likely vote for Taylor, and 62% said they were undecided. Similar percentages of respondents (23% as to Lazar and 21% as to Taylor) had no clear idea what the candidate stands for, while about 60% said they had not heard enough to know. The poll report, which includes public opinion on candidates, elected officials, data centers, Immigration and Customs Enforcement, online betting, and other topics, is available here. When Lubar Center Director Derek Mosley asked Franklin how the public stands regarding data centers specifically, Franklin responded: "We don't like 'em." The Supreme Court election is April 7. Franklin said he'll conduct another poll before then. Meanwhile, for voters wanting to know more about the Supreme Court candidates:
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